In failing to implement the evaluation, notice and other procedural requirements under the Individuals with Disabilities Education Act (20 U.S.C.A. § 1400 et seq.), and this chapter, the school district failed to provide an appropriate educational placement, as required by 20 U.S.C.A. § 1412, after it was notified of these students potentially handicapping conditions. Therefore, compensatory education and reimbursement for out-of-pocket expenses were appropriately granted. Punxsutawney Area Sch. Dist. v. Kanouff, 663 A.2d 831 (Pa. Cmwlth. 1995).

The purpose of this chapter is to specify how the Commonwealth will meet its obligation to both suspected and identified exceptional students and to provide appropriate, quality education services. That obligation entails an evaluation and screening process, including a multidisciplinary evaluation, which is mandated by both state and Federal law. Thereafter, the school district must develop a written plan for the appropriate education for the student, which must be in the least restrictive environment, in order to guarantee a free appropriate public education to the child. Punxsutawney Area Sch. Dist. v. Kanouff, 663 A.2d 831 (Pa. Cmwlth. 1995).

Evidence

It was not within the district courts discretion to reject the parents offer of additional evidence without even evaluating it for its admissibility where the parents claimed that the child was mentally gifted but afflicted with a specific learning disability that thereby entitled the child to special education. However, because at least some of the parents proffered additional evidence was acquired after the school districts decision regarding the childs need for special education, such evidence should be examined carefully and may be considered only with respect to the reasonableness of the districts decision at the time it was made. Of course, this caveat does not mean that the court cannot exclude evidence that could have been available when the school district made its decision. Susan N. v. Wilson School District, 70 F.3d 751 (3d Cir. Pa. 1995).

Exhaustion of Remedies

Where relief is available under the administrative process, a plaintiff must first utilize the available administrative process, even if the remedies available are not the remedies desired. Lindsley v. Girard School District, 213 F. Supp.2d 523 (W. D. Pa. 2002).

Upon turning 3 years old, a minor child with a pervasive development disorder was entitled to remain in an educational program at a private school, even though the public school developed appropriate education programs, when the public school failed to provide appropriate public education at the beginning of the school year. Delaware County Intermediate Unit No. 25 v. Martin K., 831 F. Supp. 1206 (E. D. Pa. 1993).

One of the goals of the Department of Education is to provide all exceptional children in this Commonwealth with an appropriate educational program, as defined by Department regulations. Veschi v. Northwestern Lehigh School District, 772 A.2d 469, 1037 (Pa. Cmwlth. 2001); appeal denied 788 A.2d 382 (Pa. 2001).

The Special Education Due Process Appeals Panel of the Department of Education exceeded its authority in fashioning a remedy that requires college-level instruction and private tutoring, where, as applied to the gifted child, compensatory education is limited to education available within the curriculum of the school district. Brownsville Area School District v. Student X, 729 A.2d 198 (Pa. Cmwlth. 1999); appeal denied 745 A.2d 1225 (Pa. 1999).

School District Cooperation

A school district is not required to create a Life Skills Support program within its own district; thus, sending a student to a nearby school district satisfied the requirements of the Individuals with Disabilities Act. Cheltenham School District v. Joel P. ex rel. Suzanne P., 949 F. Supp. 346 (E. D. Pa. 1996); affirmed 135 F.3d 763 (3rd Cir. 1997).

Transportation for Special Education Students

A school district is not obligated to provide transportation for a special education student to and from the residence of both the students father and mother when the father resides outside the boundaries of the district. North Allegheny School District v. Gregory, 687 A.2d 37 (Pa. Cmwlth. 1996); appeal denied 702 A.2d 1062 (Pa. 1997).

School district boundaries are not determinative of a districts obligation to meet a particular request for transportation as a related service. Clearly, when necessary to some integral part of the students special educational needs, a district must provide related services even where this imposes a substantial burden on the district. North Allegheny School District v. Gregory, 687 A.2d 37 (Pa. Cmwlth. 1996).

The Special Education Due Process Appeals Panel of the Department of Education exceeded its authority in fashioning a remedy that requires college-level instruction and private tutoring, where, as applied to the gifted child, compensatory education is limited to education available within the curriculum of the school district. Brownsville Area School District v. Student X, 729 A.2d 198 (Pa. Cmwlth. 1999); appeal denied 745 A.2d 1225 (Pa. 1999).

This section does not incorporate all possible related service personnel into the list of individuals whose salaries and retirement fund payments will be reimbursed by the Commonwealth; therefore, assistants did not include physical therapists, psychiatrists and the like. Bethlehem Area School District v. Carroll, 616 A.2d 737 (Pa. Cmwlth. 1992).

Cover Pages

The school district failed to provide an exceptional student with a free appropriate public education (FAPE), where its individualized education program (IEP) was procedurally deficient because a certified school psychologist was not part of the Multiple Disciplinary Team, the required cover pages of the IEP which detail the type of program being offered, the related services, the duration of the IEP, various services that needed to be considered and reviewed and the like were noticeably absent, no Notice of Recommended Assignment was ever proffered by the district to the family, and there is no evidence in the record that the district ever attempted to go to the students school in order to develop further the Comprehensive Evaluation Report (CER) through the use of its own psychologist and other staff, and where the CER and the IEP devised by the district also failed to meet substantive requirements because the degree of need in the CER were sketchy and thin, the IEP was vague, failed to address a means of handling the students emotional and behavioral disorders and contained immeasurable standards. Cumberland Valley School District v. Lynn T., 725 A.2d 215 (Pa. Cmwlth. 1999).

Overpayments

As the approved private school failed to establish a basis for an allocation of allowable costs alternative to the equivalent full-time student (EFTS) reimbursement entitlement formula which the auditor applied in concluding that the Department of Education had overpaid the school, the Court properly determined that the school must reimburse the Department of Education for overpayments which the school received for tuition and maintenance of approved special education pupils enrolled at the school. Community Country Day School v. Department of Education, 641 A.2d 1282 (Pa. Cmwlth. 1994).

Reimbursement Appropriate

The school district failed to meet its obligations under the Individuals with Disabilities Education Act for the 1994-95 school year because it did not make any formal offer of educational placement for the student until April 1995, 10 months after the school district offered an inappropriate placement and nearly 7 months after the hearing officer determined that the offered placement was inappropriate and ordered the school district to provide an appropriate educational program. Thus, the parent was entitled to reimbursement of tuition expenses at the private school which offered an appropriate education. Christen G. v. Lower Merion School Dist., 919 F. Supp. 793 (E. D. 1996).

Reimbursement Inappropriate

Although the parent disagreed with the emotional support component of the Individualized Education Plan, the school districts plan was reasonably calculated to enable the student to receive educational benefits and was a free appropriate public education; thus, the parent was not entitled to tuition reimbursement for private education. Christen G. v. Lower Merion School Dist., 919 F. Supp. 793 (1996).

Religious Schools

Reimbursement to a parent for the cost of educating their child at a Quaker sponsored school where the school district failed to offer a free appropriate public education in accordance with its obligations under the Individuals with Disabilities Education Act did not violate the First Amendment to the United States Constitution by having a principal or primary effect that advances religion. Such reimbursement did not in any way advance religion and the only matter advanced was the determination by Congress that a disabled child should receive a free appropriate public education. Christen G. v. Lower Merion School Dist., 919 F. Supp. 793 (1996).

School district boundaries are not determinative of a districts obligation to meet a particular request for transportation as a related service. Clearly, where necessary to some integral part of the students special educational needs, a district must provide related services even where this imposes a substantial burden on the district. North Allegheny School District v. Parents, 687 A.2d 37 (Pa. Cmwlth. 1996); appeal denied 702 A.2d 1062 (Pa. 1997).

A school district is not obligated to provide transportation for a special education student to and from the residence of both the students father and mother when the father resides outside the boundaries of the district. North Allegheny School District v. Parents, 687 A.2d 37 (Pa. Cmwlth. 1996).

In school suspensions are considered defacto suspensions when the child repeatedly leaves school instead of attending the suspension. Defacto suspension days are included in calculating the allowable 15 cumulative absent days per year. Big Beaver Falls Area School District v. Jackson, 624 A.2d 806 (Pa. Cmwlth. 1993); appeal denied 636 A.2d 635 (Pa. 1993).

School districts failure to include individualized behavior management programs in a students individualized education programs and failure to conduct a neurological evaluation to determine a possible effect of the students head injury despite its knowledge of that injury was a violation and established that the school district failed to take reasonable steps to mainstream the dent in the regular classroom with supplementary aids and services. Millersburg Area School District v. Lynda T., 707 A.2d 572 (Pa. Cmwlth. 1998); appeal denied by 725 A.2d 1223 (Pa. 1998).

Even where the family sends an exceptional child to private school, the public school District is still obligated to provide special education and early intervention programs and services for the child. However, providing those services and programs at the District, and not at the private school, satisfies that obligation. Veschi v. Northwestern Lehigh School District, 772 A.2d 469, 1037 (Pa. Cmwlth. 2001); appeal denied 788 A.2d 382 (Pa. 2001).

Where the District conducts speech and language classes appropriate for an exceptional student enrolled in a private school, that student must receive an equal opportunity to participate in those classes. Veschi v. Northwestern Lehigh School District, 772 A.2d 469 (Pa. Cmwlth. 2001).

Placement in a private school, with the District bearing the responsibility for the attendant tuition, will only be approved if neither the local school district nor its supporting IU can provide an appropriate education for the child in question. Veschi v. Northwestern Lehigh School District, 772 A.2d 469 (Pa. Cmwlth. 2001).

The school district failed to provide an exceptional student with a free appropriate public education (FAPE), where its individualized education program (IEP) was procedurally deficient because a certified school psychologist was not part of the Multiple Disciplinary Team, the required cover pages of the IEP which detail the type of program being offered, the related services, the duration of the IEP, various services that needed to be considered and reviewed and the like were noticeably absent, no Notice of Recommended Assignment was ever proffered by the district to the family, and there is no evidence in the record that the district ever attempted to go to the students school in order to develop further the Comprehensive Evaluation Report (CER) through the use of its own psychologist and other staff, and where the CER and the IEP devised by the district also failed to meet substantive requirements because the degree of need in the CER were sketchy and thin, the IEP was vague, failed to address a means of handling the students emotional and behavioral disorders and contained immeasurable standards. Cumberland Valley School District v. Lynn T., 725 A.2d 215 (Pa. Cmwlth. 1999).

Placement

Placement in a private school, with the district bearing the responsibility for the attendant tuition, will only be approved if neither the local school district nor its supporting IU can provide an appropriate education for the child in question. Veschi v. Northwestern Lehigh School District, 772 A.2d 469, 1037 (Pa. Cmwlth. 2001); appeal denied 788 A.2d 382 (Pa. 2001).

Tuition Reimbursement

Mother of a student was entitled to reimbursement for tuition she paid to an out-of-State residential educational facility, where the program offered by the school district had not been effective because the students social and emotional needs were not addressed by his individual educational program (IEP) and because his behavior continued to worsen. Stroudsburg Area School District v. Jared M., 712 A.2d 807 (Pa. Cmwlth. 1998).

Placement in a private school, with the district bearing the responsibility for the attendant tuition, will only be approved if neither the local school district nor its supporting IU can provide an appropriate education for the child in question. Veschi v. Northwestern Lehigh School District, 772 A.2d 469, 1037 (Pa. Cmwlth. 2001); appeal denied 788 A.2d 382 (Pa. 2001).

Placement in a private school, with the district bearing the responsibility for the attendant tuition, will only be approved if neither the local school district nor its supporting IU can provide an appropriate education for the child in question. Veschi v. Northwestern Lehigh School District, 772 A.2d 469, 1037 (Pa. Cmwlth. 2001); appeal denied 788 A.2d 382 (Pa. 2001).

Parents/complainants had no right to appeal a determination of a consumer complaint in which the parents alleged a general failure to provide a preconference hearing and a due process hearing. Complainants are not considered a party to a proceeding before the Department upon the filing of a consumer complaint and, therefore, may not file an appeal of a decision. Wolfe v. Lower Merion School District, 801 A.2d 639 (Pa. Cmwlth. 2002).

While due weight must be accorded to the administrative proceedings, the burden of proof remained on the school district to show that it was in compliance with the Individuals with Disabilities Education Act (20 U.S.C.A. § 1400 et seq.), even when, as here, the school district prevailed at the administrative level. Laughlin v. Central Bucks Sch. Dist., No. 91-7333, 1994 U. S. Dist. LEXIS 201 (E. D. Pa. January 12, 1994).

Consumer Complaint

Parents/complainants had no right to appeal a determination of a consumer complaint in which the parents alleged a general failure to provide a preconference hearing and a due process hearing. Complainants are not considered a party to a proceeding before the Department upon the filing of a consumer complaint and, therefore, may not file an appeal of a decision. Wolfe v. Lower Merion School District, 801 A.2d 639 (Pa. Cmwlth. 2002).

Coordination Services

Subdivision (n)(2) makes it clear that only a school district has the option to forgo utilization of the coordination services offered in (n)(1) of this section. There is no language in the regulations that gives this option to the parents or requires that a school district notify parents of this option. Therefore, there was no violation of a parents due process right where the school district failed to notify the parent of the right to a hearing from an agency other than the Department of Education. Kozak v. Hampton Township Sch. Dist., 655 A.2d 641 (Pa. Cmwlth. 1995), appeal denied 666 A.2d 1060 (Pa. 1995).

To file suit to seek tuition reimbursement under the Federal Individuals with Disabilities Education Act (IDEA), a claimant must exhaust all available administrative remedies, including the due process hearing provided by § 14.64(a). The fact that one party feels that a mutually satisfactory resolution is impossible does not render the hearing futile; instead, the hearing is required to seek relief under the IDEA. Falzett v. Pocono Mountain School District, 150 F. Supp.2d 699 (M.D. Pa. 2001).

Pending Litigation

Although the first appeals panels decision was reached, the litigation was not resolved; therefore, 20 U.S.C.A. § 1415(e)(3)s requirement that during the pendency of any proceedings . . . the child shall remain in the then current educational placement applied to this case. Drinker v. Colonial School District, 78 F.3d 859 (3d Cir. 1996).

The district court was correct in its decision that the school district must bear the burden of paying for the costs of a students education through the date of the district courts final order. Drinker v. Colonial School District, 78 F.3d 859 (3d Cir. 1996).

Two-Tiered Review

Under the two-tier due process hearing procedure, the Appeals Panel is the ultimate factfinder and charged with making an independent examination of the evidence in the record; therefore, the Appeals Panel is not bound by the decision of the hearing officer, and its scope of review is not restricted to determining whether the hearing officers factual findings are supported. Millersburg Area School District v. Lynda T., 707 A.2d 572 (Pa. Cmwlth. 1998).

School district was required to reimburse an exceptional students parents for one-fourth the cost of an evaluation of the student performed by a doctor, where the district failed to include a certified school psychologist as required and because the district used the report when it prepared the individualized education program for the student. Cumberland Valley School District v. Lynn T., 725 A.2d 215 (Pa. Cmwlth. 1999); affd sub. nom. In re Residence Hearing, 744 A.2d 1272 (Pa. 2000).

According to the plain language of this section, parents are entitled to reimbursement for a private evaluation only if the private evaluation was sought as the result of a disagreement with an MDE and if the private evaluation shows the school districts MDE to be inappropriate. Because the parent had the child evaluated on their own initiative and not as the result of any disagreement and since the MDE was found to be appropriate, the parent was not entitled to reimbursement under this section. Kozak v. Hampton Township Sch. Dist., 655 A.2d 641 (Pa. Cmwlth. 1995), appeal denied, 666 A.2d 1060 (Pa. 1995).

By adopting the Federal regulations relating to assistance to states for education of children with disabilities, Pennsylvania seeks to ensure all children with disabilities the right to a free appropriate public education (FAPE). Delaware Valley School District v. Daniel G., 800 A.2d 989 (Pa. Cmwlth. 2002).

The panels award of compensatory education was premised on a separate and distinct basis from the issues raised before the Hearing officer, requiring remand for an evidentiary hearing and an adjudication on the issue of appropriateness of the multidisciplinary evaluation. Mifflin County School District v. Special Education Due Process Appeals Board, 800 A.2d 1010 (Pa. Cmwlth. 2002).

The definition of the mandated least restrictive environment in this Commonwealths early intervention regulations differs significantly from that of IDEA, in that it specifically considers that for a preschool aged child, home may be the least restrictive environment. Delaware County Intermediate Unit v. Jonathan S., 809 A.2d 1051 (Pa. Cmwlth. 2002); appeal denied at 835 A.2d 710 (Pa. 2003).

Parents/complainants had no right to appeal a determination of a consumer complaint in which the parents alleged a general failure to provide a preconference hearing and a due process hearing. Complainants are not considered a party to a proceeding before the Department upon the filing of a consumer complaint and, therefore, may not file an appeal of a decision. Wolfe v. Lower Merion School District, 801 A.2d 639 (Pa. Cmwlth. 2002).

Cross References

This section cited in 22 Pa. Code § 11.34 (relating to excusals from attendance for other than temporary reasons).

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